The Complainant is Boursorama S.A. of Boulogne Billancourt, France, represented by Nameshield, France.
The Respondent is Daven Mejon of Florida, United States of America. 2. The Domain Name and Registrar
The disputed domain name is registered with GoD, LLC. (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on September 2, 2014. On September 2, 2014, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On September 3, 2014, the Registrar transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details.
The Center verified that the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy” or “UDRP”), the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”), and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the “Supplemental Rules”).
In accordance with the Rules, paragraphs 2(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on September 9, 2014. In accordance with the Rules, paragraph 5(a), the due date for Response was September 29, 2014. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on September 30, 2014.
The Center appointed Philippe Gilliéron as the sole panelist in this matter on October 2, 2014. The Panel finds that it was properly constituted. The Panel has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with the Rules, paragraph 7. 4. Factual Background
The Complainant was created in 1995. It is active in the fields of online brokerage, financial information on the Internet and online banking. The Complainants counted more than 505,000 customers in 2013.
The Complainant owns several trademarks consisting in whole or in part of the word “boursorama”, notably:
- Community Trade Mark (no. 001758614), registered under classes 9, 16, 35, 36, 38, 41 and 42 with a priority date as of July 13, 2000;
- Combined French trademark (no. 3676765), registered under classes 35, 36 and 38 with a priority date as of September 16, 2009;
- French trademark (no. 98723359), registered under classes 9, 16, 35, 36, 38 and 42 with a priority date as of March 13, 1998.
The Complainant carries out its online activities through different domain names, notably (as of March 1, 1998), (as of July 24, 2006), (as of February 20, 2007), (as of September 20, 2006), (as of September 24, 1998), (as of June 3, 2005) and (as of July 21, 2010).
The Respondent registered the domain name on August 29, 2014. The disputed domain name is linked to a website similar to the official “www.” website of the Complainant. 5. Parties’ Contentions A. Complainant
The Complainant first alleges that the disputed domain name is similar to its BOURSORAMA trademark as it entirely contains its trademark and that the addition of the combined country code Top-Level Domain (“ccTLD”) elements “.” is not sufficient to exclude the likelihood of confusion resulting from such incorporation.
The Complainant then asserts that the Respondent has no rights or legitimate interests in the disputed domain name, as it is neither affiliated to the Complainant nor authorized by the Complainant to use the BOURSORAMA trademark. The Complainant does further not carry out any activity for, nor has any business with the Respondent.
The Complainant finally affirms that the disputed domain name was registered and is being used in bad faith. Given the reputation of the Complainant’s BOURSORAMA trademark, the Complainant argues that the Respondent has registered the disputed domain name with full knowledge of the Complainant’s trademark and uses it for the purpose of misleading and diverting Internet traffic. The Complainant asserts that this particularly holds true with regards to a “phishing” website such as in the present case. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings
Paragraph 15(a) of the Rules instructs this Panel to “[…] decide a complaint on the basis of the statements and documents submitted and in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable”.
Pursuant to paragraph 4(a) of the Policy, the Complainant must prove each of the following three elements to obtain an order that the disputed domain name should be cancelled or transferred:
(i) The disputed domain name registered by the Respondent is identical or confusingly similar to a trademark or a service mark in which the Complainant has rights; and
(ii) The Respondent has no rights or legitimate interests in respect of the disputed domain name; and
(iii) The disputed domain name has been registered and is being used in bad faith. A. Identical or Confusingly Similar
According to the Policy, paragraph 4(a)(i), the Complainant has to prove that the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights.
The Complainant proves to be the holder of several verbal trademarks consisting of the word “boursorama”.
UDRP panels widely agree that incorporating a trademark into a domain name can be sufficient to establish that the domain name is identical or confusingly similar to a registered trademark for purpose of the Policy (see, e.g., Uniroyal Engineered Products, Inc. v. Nauga Network Services,WIPO Case No. D2000-0503; Thaigem Global Marketing Limited v. Sanchai Aree,WIPO Case No. D2002-0358; and F. Hoffmann-La Roche AG v. Relish Entreprises, WIPO Case No. D2007-1629).
This is all the more true when the inserted trademark, a well-known one, consists of the dominant part of the disputed domain name, and that the added elements are merely descriptive.
Such happens to be the case here. The addition of ccTLD components “.” does not exclude the likelihood of confusion resulting from the incorporation of the Complainant’s BOURSORAMA trademark in its entirety in the disputed domain name.
As a result, the Panel considers paragraph 4(a)(i) of the Policy to be satisfied. B. Rights or Legitimate Interests
According to the Policy, paragraph 4(a)(ii), the Complainant has to demonstrate that the Respondent has no rights or legitimate interests in the disputed domain name.
As the panel stated in Do The Hustle, LLC v. Tropic Web,WIPO Case No. D2000-0624, demonstrating that the respondent has no rights or legitimate interests in the domain name “would require complainant to prove a negative, a difficult, if not impossible, task”. Thus, in that decision, the panel opined that “[w]here a complainant has asserted that the respondent has no rights or legitimate interests in respect of the domain name, it is incumbent upon the respondent to come forward with concrete evidence rebutting this assertion”. Following that decision, subsequent panels developed a consensual view that it is deemed sufficient for a complainant to make a prima facie case that the respondent lacks rights or legitimate interests in a domain name. Once a prima facie case has been made, it is the respondent’s burden to demonstrate its rights or legitimate interests. If it fails to do so, the complainant is deemed to have satisfied paragraph 4(a)(ii) of the Policy (see, e.g., paragraph 2.1 of WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Second Edition (“WIPO Overview 2.0”)).
In the present case, the Complainant is the owner of the BOURSORAMA trademark. The Complainant has no business or other relationships with the Respondent.
The Complainant thus has made a prima facie case showing that the Respondent has no rights or legitimate interests in the disputed domain name.
On its side, the Respondent has not answered to the Complaint.
Considering the absence of a Response and the fact that the Respondent is neither commonly known by the disputed domain name, nor has made a legitimate noncommercial or fair use of the disputed domain name, the Panel finds that the Respondent has failed to demonstrate any rights or legitimate interests in the disputed domain name.
Consequently, in light of the above and the Panel’s findings as to bad faith, the Panel considers paragraph 4(a)(ii) of the Policy to be fulfilled. C. Registered and Used in Bad Faith
For a complaint to succeed, a panel must be satisfied that a domain name has been registered and is being used in bad faith (Policy, paragraph 4(a)(iii)).
Bad faith requires the Respondent to be aware of the Complainant’s trademarks. In the present case, the Panel finds it hard to believe that the Respondent would have chosen and registered the disputed domain name in good faith, without having been aware of the Complainant’s BOURSORAMA trademarks. The Respondent, having neglected to participate in these proceedings, did not bring any evidence to support such a choice; such evidence does not result from the file, and the Respondent has to bear the consequences of its default in that regard.
There is no doubt in the Panel’s opinion that the Respondent was very well aware of the Complainant’s trademarks, and that the disputed domain name has been registered, and is being used to attract Internet users to the Respondent’s website for commercial gain, by creating a likelihood of confusion and leading Internet users to believe that the Respondent’s website is linked to the Complainant.
This holds particularly true in the present case. The website attached to the domain name bears troubling similarities as to its layout and colors with the official “www.” website, so as to give users the wrongful impression that the website would be held by the Complainant. As rightfully ruled by previous UDRP panels, the use of a domain name for purposes of a phishing scheme – which is alleged by the Complainant and uncontested by the Respondent – is perhaps the clearest evidence of registration and use of a domain name in bad faith (The Royal Bank of Scotland Group plc v. Secret Registration Customer ID 232883 / Lauren Terrado,WIPO Case No. D2012-2093).
Consequently, the Panel is of the opinion that the disputed domain name has been registered and is being used in bad faith under the paragraph 4(a)(iii) of the Policy. 7. Decision
For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the disputed domain name be transferred to the Complainant.
Philippe Gilliéron
Sole Panelist
Date: October 21, 2014
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